Legal humor. Seriously.

Civil Procedure

Just a quick update to say that those of you out hunting for Bobby Chen (see "Could Someone Ask Bobby Chen to Call the U.S. Supreme Court?" (Dec. 20, 2014)) can call off the search. Although the Court had agreed to hear his case—making him one of relatively few pro se litigants to achieve that goal—he never responded to the Court's notice that it had granted certiorari. That is, he didn't just miss the deadline to file his brief, he completely disappeared.

There were in fact people trying to find Bobby, among them reporters and also attorneys who would have been happy to handle (and for free) one of the few cases that the Court agrees to take. But no luck. The Wall Street Journal reached the possible owner of the property that Chen listed as his address, and while she might have been able to solve the mystery she wasn't interested in helping. "Subpoena me and I provide," she told the Journal, and then hung up.

Apparently nobody subpoenaed her.

The city of Baltimore sure wasn't going to do it. Chen had alleged that the city damaged his house while demolishing one next door, and then to cover up the damage it demolished his house too before he could get a court order to stop it. I guess that would have destroyed the evidence, although there would still be the missing house to explain.

Anyway, the appeal had nothing to do with these facts, but rather the far more fascinating question of when a district judge has discretion to grant extra time to serve documents. Chen apparently never served the papers on the city after he sued, and then asked for an extension as the deadline was about to expire. He got one, but the city argued that a court doesn't have the power to grant extra time without a good reason—which Chen had apparently failed to offer. The Fourth Circuit eventually agreed with the city, disagreeing with seven other circuits, and the Court took the case to resolve the split. But there will be no resolution to this compelling legal drama, at least for now.

The Court would have appointed a lawyer to argue the case for Chen had it been necessary. Nobody has argued his own case before the Court since 1978, when Samuel H. Sloan did it. [See update below.] Since then the Court has turned down all such requests by non-lawyers, and in 2013 it changed its rules to make that an official policy.

Certainly if Bobby Chen had not disappeared, he wouldn't have been allowed to argue, given his track record. While I kind of enjoy the thought of Justice Alito (among others) sitting there fuming and drumming his fingers on the bench when nobody shows up for argument, the Court really doesn't have time for that.

Update: wrong. Or wrongish, anyway. Sam Sloan was the last non-lawyer to argue his own case before the U.S. Supreme Court. As a reader pointed out (thanks, William), since then at least one lawyer has "argued his own case" there, namely Michael Newdow, who argued in 2004 that a school policy requiring the Pledge of Allegiance violates the Establishment Clause (because of the "under God" part). The Court's rule just requires a lawyer to argue the case, so if you are a lawyer you can still handle it yourself. (Which is not to say that you should.)

Of course there are lots of Bobby Chens out there, but the Court is interested in the Bobby Chen who filed this petition for certiorari (via SCOTUSblog) that the Court granted on November 7. This was already unusual, because very few petitions are granted, and the odds are especially long if you wrote the petition yourself and English is not your first language. I don't mean to be too critical of Mr. Chen's work, because (1) I've seen a lot worse, to be honest, and (2) the Court did after all grant the petition he filed. Not many lawyers can say that. I'm really just pointing out that it is unusual for a pro se petition to be granted.

It is even more unusual if, once it's granted, the person who filed it then disappears.

At least, as the Wall Street Journal reports, Chen hasn't responded to the Court at all (there are various plans that need to be made) and his main brief is due on the 22nd. The case will almost certainly be dismissed if he doesn't show up, but for now the Court is still trying to locate him. The WSJ sent someone to the address given in the papers, but whoever answered the door said Bobby moved a long time ago. (I have to wonder whether that guy was actually Bobby himself, not entirely sure why "a supreme court" was trying to find him.)

It would be a drag if the case did not go forward, because then the world would not get an answer to the question presented: "Whether, under Federal Rule of Civil Procedure 4(m), a district court has discretion to extend the time for service of process absent a showing of good cause, as the Second, Third, Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits have held, or whether the district court lacks such discretion, as the Fourth Circuit has held?" Bobby Chen cares about the answer to that question, or at least he used to, because it will determine whether he can continue with his claim that Baltimore destroyed his property without a hearing. Or, as he put it, "after he came back from a trip he found his house was demolishing and all his personal belonging had disappeared."

Grammatical or not, the petition lays out the arguments reasonably well and points out that federal circuit courts disagree about the answer to the question presented (the version above is the Court's, not Mr. Chen's). It also makes public-policy arguments, for example arguing that if deadlines can be extended and vacated without good cause, "all proceeding will become uncertainty."

It also does this in less than ten pages, which just goes to show you don't necessarily need to drone on at length or use lawyer words (like "malfeasance," "to wit" or "redress," for example) to be successful.

Because the Court takes so few cases, Mr. Chen will have no trouble finding a lawyer to help him with this one for free. So if you see him, please ask him to call the Court at 202-479-3000. The sooner the better, really.

I was a little flummoxed when I saw this caption. I thought, "That can't be right. Someone at Westlaw must have been screwing around." But ... there it is. It's beautiful in its simplicity.

It's the all-purpose caption! Think of the ink we'd save.

Unfortunately, we do need a way to distinguish between cases. Each one does get a unique number, but it's just too dull to go around saying things like "the long-awaited Supreme Court ruling in Case No. 2009-cv-42513-JRN-ERC." So not only is it ancient tradition to name them after the parties, the rules usually require it. Federal Rule 10(a), for example, says that every pleading has to have a caption with certain information in it; "the title of the complaint must name all the parties," and later pleadings have to name at least the first party on each side." So what's the deal here?

First, this was an MDL (Multi-District Litigation), which means similar federal cases from multiple states have been consolidated in one court. So there were lots of cases and complaints involved, and you gotta call it something. But usually these cases are called something like "In re BP Oil Spill Litigation," not Various Plaintiffs v. Various Defendants. I found only a handful of cases with the latter name, most of them in this same court. And you know what? A court can pretty much call a case whatever it wants.

Second, though, it does look like somebody at Westlaw was screwing around, or maybe screwing up, because this case technically isn't captioned Various Plaintiffs v. Various Defendants; it's just Various v. Various. I guess that conveys the same amount of information, though, to be honest.

As noted above, I of course immediately ran a search for U.S. cases with "Various" in the name, and turned up a couple hundred or so. Most of them are in the already comical in rem category, meaning they involve property and we pretend the things are "parties." Lots of these involved "Various Obscene Articles," but there were a few I thought were candidates for the Comical Case Names list:

United States v. Various Coins;

United States v. Various Tugs & Scows;

United States v. Various Ukrainian Artifacts;

City of St. Paul v. Various Items of DrugParaphernalia;

United States v. Various Slot Machines on Guam;

United States v. Article of Food Consisting of 432 Cartons, More or Less, Containing 6 Individually Wrapped Candy Lollipops of Various Flavors;

and my favorite,

United States v. Various Works of Art Owned by Randy.

Yes, it kind of ruins it to find out that "Randy" was his last name, but at first glance that's pretty good.

A few "various" cases were explained by a social-media company called "Various, Inc." (One of those cases was brought by our old friend Beverly Stayart, who has a history of suing search-engine companies to complain about what comes up when she searches for her own name.) There's also apparently a "Various Markets" in New York somewhere.

Finally, there was a case called Various Tort Claimants v. Father M., which doesn't sound good at all. I probably shouldn't have looked up Randy's case, and that one probably isn't getting any funnier, either.

Hey, I get it—sometimes when you win and you think the other side's position was bogus, it's hard not to get all smug and self-righteous.

But you really should try.

Not trying very hard—well, not trying at all—cost the State of Texas a lot of money on June 18, when a judge awarded other parties in a voting-rights case $1,096,770 in legal fees and costs, even though Texas had a decent argument that it was the prevailing party and so it should get paid. (McClatchy DC; thanks, Mark.)

In the U.S., normally each side has to pay its own fees, but some statutes say the "prevailing party" is entitled to recover fees from the loser. But exactly who "prevails" in a lawsuit is not always clear, and that was the case in this lawsuit, which involved Texas's plans to redraw its voting districts. (Skip down three paragraphs or so if that could not sound more boring.)

Under the Voting Rights Act—Still here? Nerd. Under the Voting Rights Act, Texas was one of the states that had to get federal "preclearance" for redistricting because of the history of discrimination there. Texas decided to sue for a declaration that its plans were okay, and the feds opposed. Other parties (Democrats, basically) intervened because they also wanted to oppose. Texas mostly lost in the district court, and it appealed. In the meantime, though, it came up with new plans that were more likely to comply with the court's order.

One day before the new plans became law, the U.S. Supreme Court held in Shelby Countythat all this VRA preclearance stuff was unconstitutional—or had become unconstitutional at some point over the last 50 years, anyway, discrimination now being a thing of the past, you see. Told you so, said Texas, and moved to dismiss the still-pending case involving its first set of plans.

Okay, so who "prevailed" in that mess? The Democratic groups said they did, because Texas lost the first ruling and changed its plans, just like they wanted it to, and they filed motions seeking over $1 million in fees. Texas did not agree.

It did not agree so much, in fact, that it didn't even bother to file responses. Or, rather, it did file something but it couldn't bring itself to call the document a "response." It filed this three-page thing it called an "Advisory," saying that not only did Shelby County mean Texas won, it meant Texas had essentially always been right because the law was unconstitutional all along (an "affront" and a "nullity"), and the case never should have been brought. That's wrong for a couple of reasons, I think, but Texas was so sure of itself that it didn't bother to say much of anything else.

In fact, she said, it presented "a case study in how not to respond to a motion for attorney fees and costs." While Texas might have lost anyway, to be honest, the attitude didn't help it, and at a minimum it waived any argument that the amount of fees claimed was unreasonable because it said nothing about that at all.

Granted, it was probably somewhat satisfying to file that "Advisory," but you have to wonder how much that satisfaction was worth.

Okay, "strategy" is not the right word, because far be it from me to suggest that anyone would do this deliberately. But if one were to accidentally trip on a phone cord while visiting the IRS to discuss a large unpaid tax bill, an even larger personal-injury award might just turn that frown upside down.

Such was the bad and/or good fortune of William Berroyer, Sr., who walked into an IRS office to discuss a $60,000 tax debt and walked out with an injury that led to an $862,000 judgment.

According to the court's order (the parties seem to have waived a jury), Berroyer was 61 at the time of the incident in 2008. He owed about $60,000 in back taxes, and was at the IRS office in Hauppauge, New York, to discuss that. He met with an agent in a conference room that held some file cabinets as well as the table, chairs, and a telephone with a cord that ran across the table toward Berroyer and then under the table. Although Berroyer said he was "very nervous," the meeting was amicable and they agreed on a payment plan. As Berroyer got up to leave, he tripped and fell, hitting a file cabinet. He was able to walk out, but later called from the parking lot to say that his shoulder hurt and his legs felt funny.

He was treated for a spinal injury, and later sued for $10 million.

Trap-like condition

It looks like the trial did not focus on liability, probably because the IRS had to concede that the cord wasn't taped down as it should have been, creating a tripping hazard. Or, as the complaint put it, defendant used an "excessively long telephone and/or utility cord ... underneath a conference room table so as to present a trap-like condition ... [and] so placed as to be hidden and non-apparent." (Editing tip: something that is hidden is not apparent. Both terms not required.) But there was some question about how the trap-like condition was sprung.

This incident was widely reported in the Turkish media in September. See, e.g., "Yargıtay kararını mezar taşına yapıştırdı," TRT News (Sept. 27, 2013). A Turkish woman (or at least one who speaks Turkish) sent it to me the other day. She explained that under Turkey's Notification Law, court notifications are made through the postal service (although it looks likethe law has changed since this incident). That is, postal officers there are similar to process servers in the U.S. in that they go out and try to locate people to ensure they get notice of court action. If the intended recipient is not present at his or her last known address, the officer has to investigate. As in the U.S., under certain conditions, a notification will be considered effective if it is posted on the front door of the recipient's residence.

According to the report, in this case the officer seems to have had some difficulty locating the guy he was looking for. Turns out there was a good reason for that, but the officer still did his best. In his handwritten note to the court (at the top right of the image below), he explained: "Tebligat K.35 maddesine göre muhatap mefat ettiğinden kabir taşına yapıştırılmıştır. Tebliğ edilmiştir."

Which roughly translates to: "Under Article 35 of the Notification Law, the notification was pasted on the recipient's gravestone because he is deceased. Notification has been duly made."

I know this one sounds like an urban legend, but I don't think it is. Although as far as I can tell this is the first mention of it in English (thanks again, source), it was widely reported in Turkish, including in the report linked above by the Turkish Radio and Television Corporation. There is a picture of the notification, obviously, and at least according to Google's very rough translation abilities the text on the notice says what the report and my source claim it says. (Most importantly, kabir taşına means "gravestone.") It is a little troubling that the "return of service" note is dated 2007 but as far as I can tell the story wasn't reported until 2013. But that does happen sometimes. Basically, it's the picture that seals it for me.

According to this summary of the Notification Law, Article 35 states that if the recipient has moved and left no forwarding address, the notice is to be attached to the door of the place where the recipient was last known to reside. I guess that seems about right here.

"[There's a] man sitting in the courtroom, he appears to be in good health," noted Judge Allan Davis on Monday. But by the end of the hearing, that man was dead.

He had also been dead when he walked in, though, so nothing really changed.

As Ryan Dunn of The Courier reported on Tuesday, Donald Eugene Miller Jr., formerly of Arcadia, Ohio, had been declared legally dead in 1994. In fact, Judge Davis was the one who issued that order. After a hearing at which Miller appeared (physically) in an effort to prove he was not actually dead, Davis ruled that despite this fairly compelling evidence of life, in the eyes of the law Miller would have to stay dead.

The reason for this is (if my research is correct, and of course it probably is) Ohio Revised Code section 2121.01 et seq., known as the "Presumed Decedents' Law." Despite the title, the law does not belong to any presumed decedents and certainly does not benefit them in any way. It provides for a "presumption of the death of a person" if he or she:

disappeared and hasn't been heard from in five years;

disappeared less than five years ago after being "exposed to a specific peril of death"; or

Under the law, an interested party can bring an action stating the necessary facts and asking a court to issue a decree stating that the person is presumed dead. The PDL is part of the state's probate code, and so the typical effect is simply to provide that the property of the now-legally dead person can be distributed as if he or she was in fact dead as a doornail. Wills can go through probate, real and personal property can be distributed, life insurance pays out, and so on.

In this case, Miller had been "last reported in Arcadia" in 1986. He testified Monday that he had lost his job, decided to look elsewhere for work, and then it just "kind of went further than I ever expected it to." (I.e., Florida.) After he'd been missing for eight years, his ex-wife asked for the death decree so their children could get Social Security death benefits, and Judge Davis agreed. According to the report, Miller returned to Ohio in 2005, whereupon his parents informed him that he was dead. He's apparently been okay with that for some time, but told the court that he would like to be alive again now so he can get his Social Security card and driver's license back.

Nope.

The Ohio law does provide for situations in which it is later "established that the presumed decedent is alive," which is what Miller was hoping to show by bringing his body to court and proving he was still in it. A death decree can be vacated, at which point the presumed decedent's status is elevated to "person erroneously presumed to be dead," and he or she then has certain rights to recover property. (His ex-wife said she only opposed Miller's motion because she didn't want to have to pay anything back, and noted that he owes about $26,000 in child support.) The problem is that the law is pretty clear that this has to be done "within a three-year period from the date of the decree...." Since 19 is more than three, Miller is still dead.

"I don't know where that leaves you," the judge told him, "but you're still deceased as far as the law is concerned."

Exactly where that does leave him doesn't seem to be clear. On Twitter, for example, one person asked me whether this means "no laws apply to him because he is legally dead? you can't charge a dead man." I can't remember any cases of a dead man being charged with a crime, but I wouldn't put it past our justice system to do that, and here we have a living dead man. So if I were Donald Eugene Miller Jr., I would not take this as a get-out-of-jail-free-because-I'm-dead card. Prosecutors would presumably point to the fact that this law is in the probate code and so should be limited to effects on property, and argue that it would be bad policy to give people immunity just because they happen to be deceased.

But, hang on a second ... Section 2121.04(B) specifically says that "[t]he death of such presumed decedent shall for all purposes under the law of this state be regarded as having occurred as of the date of such decree." Emphasis added. Doesn't say "probate code" or even "property law." I still wouldn't commit any crimes if I were him, but even assuming this is limited to civil law, it has some interesting possibilities. Can he get a job in Ohio? If he can, does he have to pay taxes, or can he file a return every year listing his status as "still deceased"?

Something tells me the IRS has already figured out a way around this little dodge, but the Ohio Legislature may have some work to do.

I have no idea what the underlying issue was here—apparently some kind of traffic violation—but the clip is well worth watching because you just don't get that many chances to see an attorney and a witness repeatedly flip each other off in court:

Whatever the attorney's point was, it doesn't look to me like he won that round.

Filmmaker Robert Siegel alleges that he had to pay $3,000 to use the song in a 2009 movie, and musician Rupa Marya says she had to pay for a license to use it in an upcoming live album by "Rupa & The April Fishes." Marya alleges in her complaint that the group recorded a version of "Happy Birthday to You" at a live show in San Francisco on April 27—her birthday—and then had to pay $455 to include the song on the album. Both lawsuits were apparently filed on June 19 in the Central District of California (Los Angeles).

Interestingly, Siegel and Marya are also represented (in part) by the same New York firm representing the plaintiff in the first case. That plaintiff was a New York corporation, "Good Morning to You Productions Corp.," likely incorporated by the filmmakers working on the documentary described in the earlier post. Siegel is also a resident of New York, and Marya lives in California. All three lawsuits make the same allegations, all assert federal and California law, and all seek to represent people in all 50 states who have had to pay the allegedly unlawful copyright fees.

You might be asking, or if not I'm suggesting that you do ask, why would the same firm file the same case on behalf of the same class three different times in two different places? Also, because the proposed class is nationwide, each of the individual plaintiffs is, technically speaking, already a member of the class suing in the other two cases. No class has actually been certified, of course, so right now these are just three individuals suing. But taking the class allegations literally, you could say that all three people are currently suing the same defendant in three different lawsuits.

The answer, as you might guess, or if not I'm suggesting that you do guess, is that there are other firms involved in the new cases. The New York firm is involved in all three, an Oakland firm is also involved in Marya's case, and a San Diego firm is also involved in Siegel's case (though he lives in New York). What's going on is probably that several firms have joined up for purposes of the "Happy Birthday" litigation, and for each to be in line for a cut of attorneys' fees, if any, each needs to be involved in a lawsuit. All the lawsuits (and there are likely more to come) could end up consolidated in a single court, which can result in some crowded courtrooms and occasionally some entertaining arguments over the splitting of fees.

To be clear, there is nothing unusual and nothing necessarily unethical about all this. Firms that represent plaintiffs are usually smaller than those on the defense side, and (sometimes) do not have the resources to litigate a big case individually. So sometimes what's happening is just a pooling of resources necessary to pursue claims that have merit. (Hey, it can happen.) As discussed in the earlier post, there seems to be a lot of support for the plaintiffs' position here. I do think there are times when these kinds of interlocking lawsuits, sometimes with interlocking and/or plaintiffs, are designed to make bogus litigation seem more serious, but I have no reason to think this is one of those times.

I've known about this order for a while now—it was issued in a case called Hyperphrase Technologies v. Microsoft Corp. in 2003—but was surprised to note (after somebody sent it to me today) that I apparently haven't posted it here yet. It belongs on the Noteworthy Court Orders page so that's where it's going now.

The brief order concerns a motion to strike (basically an objection to a document, but "motion to strike" sounds more dramatic) that was aimed at a summary judgment motion filed by Microsoft. The motion was due on June 25, 2003, and as in most federal courts, an electronic filing anytime before midnight is considered timely. The magistrate judge describes what happened next:

In a scandalous affront to this court's deadlines, Microsoft did not file its summary judgment motion until 12:04:27 a.m. on June 26, 2003, with some supporting documents trickling in as late as 1:11:15 a.m. I don't know this personally because I was home sleeping, but that's what the court's computer docketing program says, so I'll accept it as true.

(Emphasis added.) Well, that is a clear violation of the court's order, and so the other side's team of lawyers sprang into action:

Microsoft's insouciance so flustered Hyperphrase that nine of its attorneys, namely [names omitted here but listed in full by the court for shaming purposes] promptly filed a motion to strike the summary judgment motion as untimely. Counsel used bolded italics to make their point, a clear sign of grievous iniquity by one's foe. True, this court did enter an order on June 20, 2003 ordering the parties not to flyspeck each other, but how could such an order apply to a motion filed almost five minutes late? Microsoft's temerity was nothing short of a frontal assault on the precept of punctuality so cherished by and vital to this court.

At this point you may have detected a certain amount of sarcasm and so may be able to predict the outcome of this motion, but I'll go ahead and give you the rest anyway:

Wounded though this court may be by Microsoft's four minute and twenty-seven second dereliction of duty, it will transcend the affront and forgive the tardiness. Indeed, to demonstrate the even-handedness of its magnanimity, the court will allow Hyperphrase on some future occasion in this case to e-file a motion four minutes and thirty seconds late, with supporting documents to follow up to seventy-two minutes later.

Having spent more than that amount of time on Hyperphrase's motion, it is now time to move on to the other Gordian problems confronting this court. Plaintiff's motion to strike is denied.

(Emphasis in original.) It is still the case that you should never miss a deadline, because you never know what a particular judge or court may do; but on the other hand, it is also a good rule of thumb to avoid being too petty.